State v. Lee

• Decision Date: 06 March 2019
• Docket Number: A18A1869
• Citation: 349 Ga.App. 181,825 S.E.2d 575
• Parties: The STATE v. LEE.
• Court: Georgia Court of Appeals

349 Ga.App. 181

825 S.E.2d 575

The STATE

v.LEE.

A18A1869

Court of Appeals of Georgia.

March 6, 2019

L. Craig Fraser, District Attorney, R. Brandon Faircloth, Assistant District Attorney, for appellant.

G. Clay Tapley, Spencer L. Fredericks, Abigail R. Safford, for appellee.

Coomer, Judge.

Dustin Lee was charged with possession of a firearm by a convicted felon. Lee filed a motion to suppress certain evidence found during the course of a warrantless search of his residence arguing, inter alia , that law enforcement failed to obtain his consent prior to searching his residence. Following a hearing, the trial court granted Lee's motion and concluded that it was unreasonable under the Fourth Amendment for law enforcement to search Lee's residence without first giving him the opportunity to object to the search. The State now appeals the trial court's order claiming its search was reasonable under existing law. We agree and reverse.

This case asks us to determine whether the suppression of certain evidence seized by law enforcement was authorized when consent to enter the residence was given to law enforcement by a co-occupant who was present, the evidence seized was in a common shared space of the residence and was in plain view of law enforcement, and the co-occupant/defendant was detained in a patrol car by law enforcement for a separate offense. More specifically, we are asked to consider whether law enforcement is required to give a detained co-occupant/defendant an opportunity to object to the officers’ entry into the residence and conduct a search. For the reasons set forth in this opinion, we reverse the trial court's order and find that law enforcement officers are not required to take affirmative steps to give a co-occupant/defendant an opportunity to object to their entry into the residence and search before acting on the permission already granted by a co-occupant.

When considering the appeal of a grant or denial of a motion to suppress, the trial court sits as the trier of fact, and this Court construes the evidence in favor of the trial court's ruling. We must defer to the trial court's determination on the credibility of witnesses; and while we review de novo the trial court's application of the law to undisputed facts, we must accept the trial court's ruling on disputed facts unless it is clearly erroneous.

State v. Mohammed , 304 Ga. App. 230, 230, 695 S.E.2d 721 (2010) (citation omitted). So viewed, the undisputed evidence shows that Jason McCoy, Chief of Police for the City of Soperton, received a call from a concerned citizen regarding a social media post allegedly made by Dustin Lee. After Chief McCoy looked at Lee's social media posts and saw photographs of Lee holding firearms, Chief McCoy deemed the posts to be threatening to himself and law enforcement officers. Aware of Lee's status as a convicted felon, Chief McCoy requested a warrant from the magistrate court for Lee's arrest for terroristic threats. After giving a sworn statement, a warrant for Lee's arrest on the charge of terroristic threats was issued. That same day, Chief McCoy and other law enforcement officers traveled to a home where Lee had been living with a woman and her two children.

Upon their arrival at the residence, Lee and his co-occupant, Vanessa Richardson, stepped out onto the porch. Lee was immediately arrested without incident for making terroristic threats and placed in a patrol car. Richardson was asked by law enforcement if there were any guns in the home. She informed law enforcement that there was a .22 rifle inside the home. Richardson then gave law enforcement permission to enter the residence while she retrieved the firearm. Once inside the home, Chief McCoy saw a rifle in plain view that was propped against a wall next to a window in the main living quarters of the residence. Richardson confirmed that it was the rifle she described and handed it over to law enforcement to be collected as evidence.

Lee was later charged with possession of a firearm by a convicted felon. He filed a motion to suppress arguing that there was no probable cause for his arrest and that the search of his residence was absent a warrant or his consent. During the hearing on the motion to suppress, Chief McCoy testified on cross-examination that he did not ask Lee for permission to enter the residence. The trial court granted Lee's motion, and the State appeals.

In its sole enumeration, the State argues that the trial court erred in granting Lee's motion to suppress when it misapplied this Court's holding in Preston v. State , 296 Ga. App. 655, 658, 675 S.E.2d 553 (2009). We agree and find that the facts of this case are distinguishable from those of Preston .

In Preston , a co-occupant of the defendant gave law enforcement consent to search the residence she shared with the defendant for illegal contraband that was allegedly in the defendant's possession. 296 Ga. App. at 655, 675 S.E.2d 553. When law enforcement arrived at the residence, they immediately arrested the defendant on an unrelated charge and proceeded to search his residence. Id . The defendant was present during the search and did not object, but the co-occupant was not present when the officers began searching the residence. Id . A gun, money, and drugs were found as a result of the search. Id . at 656, 675 S.E.2d 553. The trial court denied the defendant's motion to suppress, but we reversed. Id . at 656-657, 675 S.E.2d 553. Relying on the United States Supreme Court holding in Georgia v. Randolph ,¹ we held that one co-tenant's desire to consent to a search cannot prevail over a present co-tenant's stated objection to a search. See id . at 656-657, 675 S.E.2d 553. Although the defendant did not object to the search, the officers failed to engage in a threshold colloquy with the defendant regarding the basis for the search, which the defendant could have erroneously believed was incident to his arrest, and the officers failed to inform the defendant of his absent co-occupant's permission to conduct the search. Id . at 657, 675 S.E.2d 553. We found that the search was unreasonable under the Fourth Amendment because when an occupant is at the door, law enforcement must inform that occupant they are conducting a search pursuant to a co-occupant's consent. Id . at 657-658, 675 S.E.2d 553.

Here, the trial court misapplied our limited holding in Preston . See id . at 658, 675 S.E.2d 553. Unlike Preston , in this case, law enforcement did not arrive at Lee's residence to execute a search based upon a non-present co-occupant's consent, but instead arrived at the residence to arrest Lee on a separate charge. Although Lee was in police custody near the residence when officers asked his co-occupant for permission to enter the residence,...